Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: THURSDAY, December 9, 1993 TAG: 9312090228
SECTION: VIRGINIA PAGE: C-1 EDITION: METRO
SOURCE:
DATELINE: LENGTH: Medium
Patricia L. Willis had been accused of embezzlement, but Roanoke Circuit Judge Jack Coulter dismissed the charge.
"Justice without mercy or some degree of kindness is not justice," Coulter said in a written opinion.
Defense attorney Deborah Caldwell-Bono said Willis left personal checks made out to the civic center in the safe whenever she took money out. Even though the checks were never cashed, Caldwell-Bono argued, they showed that Willis intended to pay the money back.
Prosecutors contended the checks were hidden in the safe for months, and that Willis never intended for them to reach the bank.
But Coulter ruled that Willis, who has since resigned, did not have criminal intent - a key element prosecutors must show in every case - at the time she took the money.
"The checks [Willis] wrote and left in place of the cash then being taken is persuasive evidence that at that point in time she did not intend to deprive the owner permanently of that cash," Coulter wrote in an 11-page opinion.
The uncashed checks, in other words, "gave expression that this self-administered `loan' was to be repaid," Coulter wrote.
Chief Assistant Commonwealth's Attorney Betty Jo Anthony questioned that interpretation. Embezzlers often employ the "classic line" of saying they intended to pay the money back only after they are caught, she said.
"I think [the decision] sends the wrong message to embezzlers and would-be embezzlers that if they are careful to leave a note, then the crime will be harder to prosecute," she said.
Willis had been scheduled to go on trial today, but Coulter made his decision at a hastily arranged hearing Wednesday morning.
Coulter reportedly instructed lawyers and court officials to keep the hearing a secret, according to sources. A court docket that usually lists criminal cases by the defendant's name noted only that Coulter, a retired judge, was hearing "one case only" Wednesday.
The hearing was held in open court, however, and no one objected to a reporter's presence.
Coulter said afterward that he did not intend to exclude the media. He said his intent may have been misconstrued from an "off-the-cuff" remark he made during the scheduling of Wednesday's hearing to the effect of: "I hope the press doesn't get here."
Willis, 46, never testified in the case, which Coulter said turned on interpreting her state of mind at the time of the alleged crime.
According to accounts by Assistant Commonwealth's Attorney Greg Phillips at an earlier hearing, city officials learned that $5,000 was missing from the civic center box office in March.
Called in to explain, Willis began to conduct what appeared to be a "fake search" of the safe, Phillips said. A superior then asked her to step aside and found her personal checks in the safe.
Some of the checks were more than 6 months old, and thus could not be cashed, and were written when there was insufficient money in her account, prosecutors said.
Willis offered to make restitution on the spot and has since repaid the money. Asked at the time how she could do such a thing, Phillips said Willis responded, "I'm not making any comments until I see a lawyer."
A co-worker has pleaded guilty to embezzling $7,000. Lucy Barlow, who is scheduled to be sentenced Dec. 22, has testified that Willis knew of the crimes and told her "we could get in a lot of trouble for doing this."
Yet Willis has since maintained that she did nothing illegal. Caldwell-Bono said it was common practice for civic center employees to cash personal checks from the safe.
"They all used that little safe like a personal bank," she said. Since the funds were discovered to be missing, city officials have terminated the check-cashing policy and ordered more audits for the box office.
Although Willis' actions were certainly improper if not illegal, Coulter noted in his opinion, "she has not gone unpunished."
"We must remember . . . penalties not served behind bars but leaving indelible marks on reputation, emotion and the prospects of future livelihood and happiness."
by CNB